§ 7.22 p.m.
§ Report received.
§ Clause 2 [Appeals]:
Lord Williams of Mostyn moved Amendment No. 1:
Page 2, leave out lines 18 to 20.
§ The noble Lord said: My Lords, if it is convenient for your Lordships, I should like to speak to Amendments Nos. 1, 2 and 3 together. These three amendments relate to a point to which I referred previously—that is, the need to take account of Article 8 of the European Convention on Human Rights in establishing the new appeal rights to the special immigration appeals commission. I have been greatly assisted in my consideration of these matters by the noble Lord, Lord Lester of Herne Hill, who is constantly astute (and rightly so) to any lacunae that may appear in the legislation in this rather—I almost said "arcane" area; the noble Lord will take that in the best sense because he is a practitioner in this arcane area.
§ As I said previously, the main intention in providing appeal rights in the Bill has been to ensure that there is no risk of a breach of Article 3 of the ECHR in cases where there is presently no right of appeal on national security grounds. As I have explained, the aim has not been to give a right of appeal in all cases where an appeal is currently prohibited. We wish to ensure that there is a proper review in those cases where detention may be an issue. For the most part, this means that a right of appeal is required in those cases where there is an in-country right of appeal which is precluded only by the existing provisions restricting rights of appeal in national security cases.
§ The Bill does not therefore presently give a right of appeal in cases where entry clearance is refused because the Secretary of State has decided that the person's exclusion would be conducive to the public good. There is no question of detention or an Article 3 risk in those cases—and there is therefore no need to provide a general right of appeal.
§ We have, however, considered whether any other articles of the ECHR might require a right of appeal in some circumstances. As can be seen from my amendments, we have given particular thought to Article 8, which deals, among other things, with the right to respect for family life.
§ Article 8 allows that national security considerations can justify interference with this right, but there is nevertheless a need to provide for an effective review of any decision to ensure that any interference is in accordance with the law and is necessary.482
§ For the ECHR rights arising from Article 8 considerations to be properly dealt with, the national security case underlying the refusal of entry clearance would need to be examined. If we do not provide a right of appeal to the new commission there would be a strong likelihood, following incorporation of the convention at least, that a court of judicial review would insist on seeing the national security details. For the reasons that I set out, which I believe found favour with your Lordships on the last occasion that we debated this, we would not want that to happen. We believe—I hope that your Lordships will assent to this—that it would clearly be preferable for any consideration of the national security case to be dealt with by a commission which has been set up especially to deal with any such cases which arise.
§ Our amendments limit the new right of appeal in refusal of entry clearance cases to those cases where the right to family life is truly at issue. That means there will be a right of appeal in cases where people seek entry to the United Kingdom under the immigration rules to exercise rights of access to a child resident here (paragraph (b)(i)); as the spouse or fiancé of a person present and settled here (paragraph (b)(ii)); and as the parent, grandparent or other dependent relative of a person present and settled here (paragraph (b)(iii)). We do not envisage that there will be many cases where this extended right of appeal will be needed. However, there may be some. In the circumstances, it is clearly preferable to provide a right of appeal to prevent potential difficulties which we have identified.
§ The structure is simple. Amendment No. 2 restructures Clause 2(2) and inserts the new rights of appeal. Amendment No. 1 is simply consequential to this restructuring. Amendment No. 3 defines the term immigration rules which is inserted by Amendment No. 2. I commend the amendments to the House. I beg to move.
§ Lord Lester of Herne Hill
My Lords, I must be careful not to be too complimentary to the noble Lord, Lord Williams of Mostyn. I say that because when my wife read the Official Report of the Committee stage of this Bill she said that she had never seen so much flattery or so many compliments paid by each of us to the other. Indeed, it reminded her of the situation at the end of the 19th century when there were two constitutional legal historians, one called Freeman and the other called Stubbs, who always wrote favourable book reviews of each other's work until a wag wrote a piece of doggerel in which he said something like:Ladling butter from alternate tubs;Stubbs butters Freeman;Freeman butters Stubbs".The trouble is that I greatly admire the work that has been done by the Government and their advisers on this Bill to make it legislation of which we can all be proud.
I strongly support the amendment because it gives proper effect to the right to respect for family life in Article 8 of the convention. It also gives proper respect to European Community law. It also does something very important: it makes the special immigration appeals commission a one-stop shop. If one is setting up a 483 commission of such repute and expertise, I am very much in favour of ensuring that the problems are tackled by that body and not by a splintering of the jurisdiction. I agree with the Minister that it would be undesirable for a judicial review court to be involved in this area and that it would be better to have it within the jurisdiction of the special immigration appeals commission. This is a generous provision. It is hardly likely ever to be exercised in practice, but it seems to me to be clear and right. I support it.
§ Lord Williams of Mostyn
My Lords, I am most grateful for those remarks. I do not believe that there is any other contribution to be made. Accordingly, I ask that your Lordships approve the amendment.
§ On Question, amendment agreed to.
§ Lord Williams of Mostyn moved Amendments Nos. 2 and 3:
§ Page 2, line 23, at end insert ("and—
- (a) he seeks to rely on an enforceable Community right or any provision made under section 2(2) of the European Communities Act 1972, or
- (b) he seeks to enter the United Kingdom under immigration rules making provision about entry—
- (i) to exercise rights of access to a child resident there,
- (ii) as the spouse or fiancé of a person present and settled there, or
- (iii) as the parent, grandparent or other dependent relative of a person present and settled there.").
§ On Question, amendments agreed to.
§ 7.30 p.m.
§ Clause 4 [Determination of Appeals]:
§ Baroness Anelay of St. Johns moved Amendment No. 4:
§ Leave out Clause 4 and insert the following new clause—
§ DETERMINATION OF APPEALS
§ (" .—(1) The Special Immigration Appeals Commission on an appeal to it under this Act—
- (a) shall determine only the issue relating to the contention that the appellant's admission to or stay in the United Kingdom is not conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for reasons of a political nature; and
- (b) if it allows the appeal?—
- (i) shall remit it to an adjudicator or special adjudicator as appropriate to determine the remaining issues under the applicable provisions of Part II of the Immigration Act 1971 or the Asylum and Immigration Appeals Act 1993 as appropriate; or
- (ii) depending on the circumstances of the appellant may, after allowing the appeal, remit the matter to the Secretary of State to consider the appellant's immigration status.
§ (2) For the purposes of section 1(a) above the Commission shall allow the appeal if it considers that the decision or action by the Secretary of State or an officer (in the interests of national security 484 or of the relations between the United Kingdom and any other country or for reasons of a political nature) is not justified viewed in the context of the facts existing at the date of hearing of the appeal.
§ (3) For the purposes of section 1(b)(ii) above there shall be a right of appeal under Part II of the Immigration Act 1971 against any further refusal of the appellant's application by the Secretary of State.").
§ The noble Baroness said: My Lords, I have tabled this amendment to try to resolve a problem created by the wording of the amendment tabled by the Minister in Committee which now forms Clause 4. Having studied the Minister's speech carefully in Hansard, I believe that there are problems not previously identified which follow upon the application of Clause 4 to immigration appeals which fall within the scope of the Bill. In their efforts to prevent the Home Secretary from having a right of appeal from the decision of the commission, the Government seem to have cut away at the existing avenues of appeal available to those who seek to remain here. I hope that this is an unintended result of the new Clause 4 and that the Minister will be able to reassure me on the matter.
I do not in any way impugn the ability of members of the commission to make decisions which may properly fall within its scope of decision. I question what that scope of decision should be. I am aware that at Committee stage the Minister went further than the remarks that I have just made about the commission. He said:
We have absolute confidence in the independent review".—[Official Report, 23/6/97; col. 1435],
Strong words indeed. I wonder whether the appellants will endorse that view in times to come.
§ The objective of my amendment is to provide that in all cases, including asylum appeals, once the national security issue is determined in the appellant's favour, the matter should be referred to the appropriate appellate authority to proceed to hear the case on the remaining immigration/asylum issues in the normal way under the scheme of appeal contained within the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993.
§ The amendment which now forms Clause 4 of the Bill reproduces the whole of Section 19 of the 1971 Act. The essence of my objection is that to empower the commission to allow an appeal if the decision of the Secretary of State appears not to be in accordance with the law is a far wider remit than for the commission to consider the validity and cogency of the facts upon which the Secretary of State has decided that the appellant's presence is not in the interests of national security, etcetera. Was this really the outcome intended by the Government? In any event, what points of law are envisaged when the decision of the Secretary of State will have been taken on the facts and evidence known to him at the time and his judgment is as to whether they justified the exclusion of the appellant on the grounds of national security?
§ At the moment there is no provision for the commission to remit other outstanding immigration issues, that is, non-national security matters, to an adjudicator or back to the Secretary of State. Does that mean that the commission would be expected to 485 determine such other issues as well as that of the exercise of the discretion of the Secretary of State on the grounds of national security? If so, the appellant is at a disadvantage because there is no right of appeal beyond the commission, unlike to the Immigration Appeals Tribunal and Court of Appeal under the Immigration Act 1971 and the Asylum and Immigration Appeals Act 1993 for other applicants. Even a right of appeal from the commission would not be as satisfactory as the power to remit the issues back to an adjudicator or to the Secretary of State. Is it the Government's intention that the commission should remit such matters? If so, why is that provision not in their new Clause 4?
§ My amendment seeks to find a possible way to resolve the problem that I have outlined. The amendment provides that when the commission determines appeals under Clause 2 it should deal only with the issue of national security or the relations between the United Kingdom and any other country or reasons of a political nature and whether the Secretary of State's discretion should have been exercised differently in the light of the facts at the date of the hearing. It is my intention that it is only in appeals under Clause 2(1)(g)—cases involving asylum—that the commission should balance the considerations of national security with those of the fear of persecution or torture if the appellant were to be returned to the country of origin, along with any compassionate circumstances relating to the claim for asylum, and allow the appeal if the considerations of fear or persecution or torture override the threat to national security.
§ Where an appeal is allowed on an appeal which falls within the definitions of Clause 2(1)(a) to (f) the remaining issues should be remitted to an adjudicator to determine the remaining non-asylum issues in the usual way under the provisions of Part II of the Immigration Act 1971. Where an appeal is allowed on a Clause 2(1)(g) appeal the commission should give directions and/or make recommendations as it sees fit in order to give effect to the determination.
§ I am aware that the Minister may find my drafting wanting in giving effect to my intentions, but I hope that I have made my intentions clear. I hope that this amendment will be seen as opening up a way forward that may be adopted by the Government at Third Reading or when the Bill reaches the Commons. I beg to move.
§ Lord Lester of Herne Hill
My Lords, the proposed amendment would frustrate the central aim and object of the Bill which I take to be to secure compliance with the judgment of the European Court of Human Rights in Chahal and the European Convention by a method that is orderly and efficient and respects the need not only to secure convention rights but to protect the public interest in national security. The category of appellants whom we are considering is those who fall within Clause 2. I hope that I shall not cause offence if I define them simply as suspected terrorists for short because there will be others, but it makes it clear that we are dealing here with a very exceptional class of people.
486 The question that we are considering is: what should be the scope of the jurisdiction of the special immigration appeals commission in relation to that exceptional and special class of cases? We are told that it will involve probably no more than two or three a year. Under Clause 4 as it stands, without the amendment the commission has the jurisdiction to determine all of the relevant issues of law and fact and to give a binding decision upon them on the merits. In my view, that is what is required by Article 13 of the convention—the requirement that there be an effective domestic remedy and that it has been implemented sensitively with a special procedure. I would have thought that the noble Baroness would have been pleased with it because it does not treat the matter as an ordinary criminal trial. Given that we are dealing with suspected terrorists, it seeks to balance the rights of the appellant against the need for national security.
The amendment of the noble Baroness would fracture the commission's jurisdiction into splinters. The commission would be confined to addressing only the "non-conducive to public good" grounds—national security. The matter would then have to be remitted to the adjudicator to deal with the other legal issues or the Home Secretary to make a discretionary decision about the appellant's immigration status. That would be an unnecessarily complicated and fractured procedural framework. I see no good reason why the jurisdiction should be fractured, especially when the commission will be composed of someone with great judicial experience and the chief immigration adjudicator himself—the person at the hierarchy of the immigration appeal system. Moreover, under the amendment as I read it, the commission's decision would not be legally binding on the Home Secretary. By knocking out Clause 4 and substituting this amendment that too would not comply with the convention. Further, the commission would have to consider the appeal wearing blinkers. Because under the amendment it could consider only the facts existing at the date of the hearing of the appeal, which is a defect. I cannot for the life of me understand why this complexity should be regarded as somehow necessary or giving greater rights to the individual in a way that would meet the requirements of the Bill as a whole. For those reasons, I should be sorry to see this clause replace Clause 4 in its present form.
§ Lord Williams of Mostyn
My Lords, I am grateful to the noble Baroness for her explanation. I have to say at once that I am unable to support Amendment No. 4. As the noble Lord, Lord Lester of Herne Hill, observed, Amendment No. 4 would replace Clause 4 which was introduced unopposed as a government amendment in Committee. It would replace it with new provisions governing the determination of appeals heard by the special immigration appeals commission. The new clause would have a significant effect in some important respects. It is true that there would be few cases per year, but those cases are of extreme importance.
The most significant change which the amendment offers is that under its terms the commission would deal only with the issue of whether the appellant should be excluded from, or be required to leave, the UK for 487 reasons of national security, international relations, or for other reasons of a political nature. The felicitous phrase of the noble Lord, Lord Lester—I shall be in trouble with Lady Lester—was the "fractured jurisdiction". I believe that to be accurate as well as felicitous. As the Bill is currently drafted—this is its virtue—the commission would deal with all aspects of an appeal which fall within its jurisdiction, including, most important, any application for asylum.
If the amendment became law, it would provide that the commission would refer appeals which it had allowed to an adjudicator, a special adjudicator, or to the Home Secretary, for further decisions on outstanding matters. That is not an efficient use of resources or an efficient way of coming to these difficult decisions. We do not believe that jurisdiction should be divided in that way. It would be inefficient and unnecessary.
The tribunal of the quality and nature of the one which is to be created by the Bill will be able to deal with all aspects of the case and to conduct a full merits review on all points. There is only a single appeal. I respectfully dissent from the noble Baroness's proposition that that represents any unfairness to appellants. As a general rule, if the national security case is not accepted by the commission, it is likely that the appellant will be found to meet the requirements of the immigration rules and be allowed to come to, or remain in, the UK.
Even if we did accept that the proposed division of jurisdiction was a sensible way to approach these matters, the amendment does not allow for any consideration of the merits of a claim for asylum or any associated Article 3 considerations in any case where the national security case has been upheld by the commission. It is important to remember what was said by me on behalf of the Government on the last occasion. One very important outcome of the judgment in Chahal's case is that it is clear that there can be no question of a balancing act between the risk to an individual and national security considerations. If there are good grounds for believing that a person will be an Article 3 risk then the national security case for his or her removal is effectively—I put this bluntly—irrelevant.
I know from our previous discussions that the noble Baroness, Lady Blatch, is concerned that in the sort of cases which will come before the commission damage may be done to the interests of the nation or the state. However, as I have said, and as the noble Lord, Lord Lester, has emphasised more than once, Article 3 of the convention is an absolute obligation. If there is an Article 3 risk, then that concludes the matter.
That is why we envisage that the commission will resolve any claim for asylum before it considers the national security case. There is no benefit to be gained from considering the national security case for removal if the commission reaches the view that asylum or wider Article 3 considerations apply.
The existing Clause 4 establishes that the commission will undertake a merits review of the cases which come before it. That was warmly welcomed by the noble 488 Lord, Lord Lester, on the earlier occasion. The commission will be able to consider whether the Home Secretary was right to reach a decision on matters where he exercises his discretion—such as to deport on national security grounds—on the basis of a consideration of the evidence. It will be able to consider matters relevant to the law and to the immigration rules in respect of its wider jurisdiction. Clause 4(1)(a)(i) makes that plain: the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case.
In bringing forward the original amendment, we used the relevant aspects of Section 19 of the 1971 Act which we found of assistance. I do not think that there is any doubt that the current Clause 4 achieves what is wanted. If the commission takes a different view of the national security case from that taken by the Home Secretary, it will be able to overturn that decision; that is to say, the Bill, if it becomes law, puts into existence a machinery which involves a senior judicial figure, the senior adjudication officer, and one other person. That is the conclusion to which we came—I believe rightly—in those small number of cases. If the explanation I have been able to give assists the noble Baroness, I would ask her to withdraw the amendment.
§ 7.45 p.m.
§ Baroness Anelay of St. Johns
My Lords, I thank the Minister for his reply. He has been of some assistance, but I still have some reservations. I shall want to read Hansard carefully and reflect upon what he has said. I cannot rule out returning to the issue on Third Reading.
We on these Benches may also wish to return on Third Reading to two central issues identified by my noble friend Lady Blatch in Committee. They are issues which we believe the Minister failed adequately to address at that stage. In fairness to him, I shall refer briefly to those two issues.
I heard what the Minister and the noble Lord, Lord Lester of Herne Hill, said about the Chahal case. We on these Benches have concerns that the Bill goes significantly beyond what was required by that case, and we are concerned for the reasons involved in it.
As the Bill is currently drafted, there is nothing to stop the commission from taking a compassionate view of the appellant's circumstances and deciding that those outweigh the national security aspects, and that the appeal should be allowed on that ground. That, in itself, would appear to go beyond Chahal. There could be bizarre reasons for overturning perfectly rational arguments made by the Secretary of State as to why a person should be excluded or deported for reasons of national security, only to find that the commission, whose decision would be binding on the Secretary of State, took a view that his discretion should have been exercised differently because of personal circumstances.
That could compromise considerably the interests of national security. That possibility emphasises the need for there to be a right of appeal by the appellant and the Secretary of State to the Court of Appeal on a point of law. It means also that the only way in which to deal 489 effectively with that is for the commission's task to be restricted to considering the national security aspects, and whether the Secretary of State exercised his discretion correctly in that regard, and for it not to be able to take into account any other matter, such as the compassionate circumstances of the appellant, provided that there would be no failure to comply with Article 3 of the ECHR or other international obligations, in reaching its decision on whether the Secretary of State exercised his decision correctly.
I should also like to remind the Minister that in Committee he gave no answer to the point made by my noble friend Lady Blatch about whether both directions and recommendations of the commission are to be binding on the Secretary of State or merely directions and, if the latter, what might be the status of any recommendation.
Moreover, there appears to be no limit whatever on what directions or recommendations can be made. Could it, for example, include a direction that the appellant should be given indefinite leave to remain or that entry clearance should be granted to other members of the appellant's family who are outside the United Kingdom?
We on these Benches may wish to return to these matters in some detail at Third Reading. Today, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.51 to 8.25 p.m.]